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Discipline an Employee for Off-Duty Behavior

Key Points

An employer should address employee after-hours conduct that affects its reputation or prestige, poses employer liability risks and decreases employee productivity. Failing to address off-duty behavior could result in increased insurance premiums, a rise in workers' compensation claims or a greater likelihood of third-party negligence claims.

An employer must be aware that not all off-duty behavior can be lawfully prevented. Regulating off-duty behavior should be linked to a legitimate business purpose. In addition, employees may be protected from adverse employment actions based on certain off-duty conduct. For example, some states protect smokers from employment discrimination for tobacco consumption while off-duty. Certain state and local laws prevent employers from encouraging or discouraging an employee's political activities during nonworking hours.

An employer should create policies addressing off-duty employee conduct if such actions enforce business goals and increase adherence to work rules and ethics codes. An employer should promote an atmosphere of workplace integrity and loyalty, and should discourage conduct that may lead to conflicts of interest. In addition, an employer may discourage off-duty behavior that would affect employee productivity during working hours, such as moonlighting at a second job.

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